Reduction of Donations: Commentary on the ruling of the Civil Court of Cassation, Section II, Order no. 19919 of 2024

The recent order of the Court of Cassation, no. 19919 of July 19, 2024, offers an important reflection on the matter of succession, particularly on the reduction of donations and testamentary provisions. In this case, the Court examined the issue of tacit waiver of the right to reinstate the reserved share, highlighting the necessary requirements for such a waiver to be considered valid.

The Case Under Review

The dispute originated from an action brought by D.D., heir of E.E., against A.A., B.B., and C.C., heirs of F.F. D.D. argued that the donations made by E.E.'s husband had infringed upon her reserved share. The Court of Appeal of Palermo, with judgment no. 1438 of 2021, upheld the claim for reinstatement of the reserved share, ruling that there had been no tacit waiver by E.E.

The Court of Appeal correctly excluded the tacit waiver of the right to reinstatement, stating that the aggrieved forced heir can only waive the action for reduction through unequivocal conduct.

Legal Aspects and Implications

The Court emphasized that the intention to waive must be clearly manifested and cannot be inferred from ambiguous behavior or a simple omission to act. In particular, it was highlighted that tacit waiver cannot be inferred from the heir's participation in the stipulation of donations or from their inaction in a reduction proceeding. The Court of Cassation referred to established case law, stating that each forced heir has a right to their own reserved share, and that the conduct of one forced heir cannot preclude the right of another to assert their claims.

• The right to reinstate the reserved share is independent for each forced heir.
• Tacit waiver must be unequivocal and cannot arise from ambiguous conduct.
• The final and binding nature of a judgment covers nullities and cannot be challenged in the Court of Cassation.

Conclusions

Judgment no. 19919 of 2024 represents an important reference in the regulation of successions and the reduction of donations. It clarifies that the protection of reserved shares is fundamental and requires a clear and unequivocal manifestation of will from the forced heir. It is essential for heirs to be aware of their rights and of behaviors that could prejudice them. The Court of Cassation, confirming its established orientation, contributes to protecting fairness in successions, emphasizing the need for a rigorous interpretation of the intentions expressed by forced heirs.